Recognition of Foreign Relationships under the Civil Partnership Act 2004

Kenneth McK. Norrie

Professor of Law and Head of the Law School, Strathclyde University

JPrivIntL Vol 2 Issue 1 (April 2006)

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Abstract

Since 1989 almost fifty jurisdictions across the western world have introduced into their domestic laws a new institution for same-sex couples, replicating to a greater or lesser extent the existing institution of marriage for opposite-sex couples. The Civil Partnership Act 2004 does so for the jurisdictions of the United Kingdom, and in addition provides rules for the recognition of equivalent foreign institutions. The policy objective behind the 2004 Act was to provide for civil partnership domestic rules equivalent to those for marriage, unless this was inappropriate. The statutory recognition rules for civil partnership are, however, different in structure from the common law rules on recognition of foreign marriage and this article questions whether making the distinction is appropriate or justified. In addition, it seeks to provide some answers to recognition questions that have not been addressed by the 2004 Act. In particular, the insistence on recognizing only same-sex relationships as civil partnerships gives rise to two questions to which the Act gives no answer: how are foreign opposite-sex civil partnerships to be regarded, and how is gender to be determined for these purposes?

Keywords

Same-sex relationships, Gay marriage, Civil partnership, Gender recognition, Foreign civil partnership, Civil Partnership Act 2004